State v. HirningAnnotate this Case
The Supreme Court affirmed Defendant's conviction for possession of a controlled substance, holding that the circuit court judge did not err when he continued to preside over Defendant's case after Defendant filed an affidavit for change of judge.
Defendant pleaded guilty to possession of a controlled substance. The circuit court, the Honorable Tony Portra presiding, received Defendant's guilty plea. The Supreme Court reversed. On remand, instead of consulting his appointed counsel, Defendant filed an affidavit for change of judge. Judge Portra denied Defendant's request for change of judge. Thereafter, Defendant pled guilty to one count of possession of a controlled substance. Defendant later filed an application for a writ of habeas corpus. The habeas court granted the writ and ordered that Defendant be resentenced. The court imposed the same sentence. The Supreme Court affirmed, holding (1) Judge Portra violated S.D. Codified Laws 15-12-22 by presiding over the hearing on Defendant's affidavit for a change of judge and determining that Defendant's affidavit was not properly filed; but (2) because Defendant was not entitled to file the affidavit, Judge Portra's non-compliance with section 15-12-22 did not deprive the court of authority to accept Defendant's guilty plea and impose a sentence.